- (1.) THIS is an appeal by the accused appellant Nokha against the judgment dated 20th August, 1970 of the learned Sessions Judge, Udaipur, whereby he was convicted under sec. 302, IPC, and sentenced to undergo imprisonment for life. Ha was also convicted under section 201, IPC, and sentenced to undergo seven years' rigorous imprisonment, and to pay a fine of Rs. 200/-, and in default to undergo six months' further rigorous imprisonment. He was also convicted under section 404, IPC and sentenced to undergo 3 years rigorous imprisonment, and to pay a fine of Rs. 100/- and in default of payment of fine to undergo 6 months rigorous imprisonment. All the sentences of imprisonment were to run concurrently.
(2.) THE prosecution story is that the deceased Ganesh was the real younger brother of the accused-appellant Nokha. Ganesh used to live at Udaipur with his brother-in law (Bahnoi) Magni Ram PW/5. THE accused-appellant Nokha had his agricultural fields in village Putia Ghati, Police Station, Delwara, where he has his house, in which he was living Mst. Nathi, wife of Dalu PW/6 is the sister of the deceased Ganesh. She was living in Kailashpuri THE deceased Ganesh was in the habit of visiting his sister in Kailashpuri of and on. On 14-12-1969, in the afternoon the deceased left on a cycle from Udaipur. In the night, he stayed in Kailashpuri, and visited his brother Nokha on 15-12-1969. Ganesh inquired from Nokha where he had sold this 'karab'. Nokha replied in the affirmative. THE deceased inquired about the price it fetched. THE accused stated that he had sold it for Rs. 30/ -. THE deceased told the accused that his 'karab' has been sold at a less price of Rs 30/- only when it could have fetched Rs. 50/ -. THE accused paid Rs. 30/- in three currency notes of Rs. 10/- each to the deceased Ganesh. THE deceased was, however, not satisfied, and he said that he would make good the loss by taking an equal amount of fodder from the grass stack, which the accused had collected. So saying, the deceased went towards the grass-stack. THE accused-appellant picked up his Kulhari Ex. 1, and followed him. Smt. Walki PW/1 inquired from the accused as to where he was going, to which he replied that he was going to cut thorny bushes for fencing the grass stack. PW/3 Dalla, the Sadu of the accused was also present there. After some time, groans of the deceased were heard coming from the side of the grass stack, which was at a distance of 40 to 50 steps from the house of the accused. After sometime, the accused came with the blood soiled kulhari THE accused washed the kulhari with the water, and hid it inside the grass-stack. THEreafter, the accused went away on the cycle of the deceased. He returned after sometime without the cycle. THE accused in the evening went out of his house taking the Kulhari Ex. 5 and Pavara Ex 6 with him and returned at night. THE deceased Ganesh was staying with Magni Ram PW/5 at Udaipur. Next morning Magni Ram came to enquire about the whereabouts of Ganesh. When the whereabouts of Ganesh could not be located, Magni Ram lodged, the First Information Report on 19-12-1969 at about 10 A M. THE police arrested the accused Nokha at about 3 PM on 19-12-1969. THE police after investigation chall-aned the accused under sections 302/404, IPC on 28-1 1970 On 13 2-1970, the learned Magistrate committed the accused to the Court of Sessions. A charge under section 201, IPC was added in the Court of Sessions. On behalf of the prosecution, 16 witnesses were examined. 24 document's (exhibits) were produced, and 25 material exhibits were also produced. On behalf of the appellant, no defence evidence was led. Mr. Dalveer Bhandari appeared on behalf of the appellant as Amicus Curiae. On behalf of the accused appellant it was contended that there is no eyewitness to the incident relating the death of Ganesh. It was also contended that it is most unnatural that for the death which had occurred on 15-12-1969, the FIR should have been lodged on 19 12 1969. It was also contended that this inordinate delay in lodging the First Information Report has not been explained The learned counsel also characterised the role of Mst. Walki and Dala as very much against the normal course of human conduct. It was also contended that there are number of major discrepancies in the prosecution evidence which cannot easily be reconciled, and it discredited the prosecution case. It was also contended that it appears highly improbable that an elder brother would murder his own younger brother on a trivial amount of Rs. 20/- as the price of the fodder. On behalf of the State, it was contended that the prosecution has fully established its case, and that the recovery of the dead body, and the various articles lead to the irresistible conclusion that the accused-appellant had committed the murder of Ganesh by a kulhari. It was also contended that the statements of the accused can hardly be believed, because it appears to be merely a fairy tale. We have considered the respective contentions of the learned counsel for the accused-appellant and the State, and have carefully perused the record. Mst Walki PW/1, is the wife of the accused-appellant Nokha. She has stated that Ganesh was murdered by Nokha with a Kulhari. At that time, her Bahnoi Dala was also in the house. Ganesh had come in the morning from Udaipur on a cycle at the field of Nokha. Ganesh had asked the accused whether he had sold the gass and the kadab. The accused replied that he had sold it for Rs. 30/ , on which the deceased said, had it been sold at Udaipur, he would have fetched its price as Rs 50/. Thereupon, Ganesh said that he would make good the the lose by taking an equal amount of grass from the stack. Ganesh went towards stack which was about 40' to 50' from the house. The accused Nokha followed Ganesh with Kulhari. After sometime, she heard the groans of Ganesh. Dala is said to have gone towards the village on hearing the groans. She did not go towards grass-stack on accourt of fear. The accused came after sometime with the kulhari soiled with the blood. He washed it in water, and hid it inside the grass The accused told Mst. Walki not to disclose this to any one. She has further stated that the accused took the cycle of the deceased, kept it near the Pal, and then went towards Lohana. He returned after sometime and told that he had thrown the cycle in the rivulet of village Gudli. in the evening, the accused went with a kulhari and a favara and returned after sometime, and told the witness that he had buried the dead body of Ganesh in the Moriwala field. Next morning Magni Ram came and inquired about Ganesh He was told that Ganesh would come after sometime. Logria and Dalia had also come with Magni Ram, who also went away. After that the accused picked up blood soiled grass and threw it on the hillock and then went to Kailashpuri, Later on, the accused told her that he had thrown the dead body in the canal, and had thrown the gunny bag in the well of one Bhoi after putting the stones inside it. When she heard the groans of Ganesh she shouted, "beri mere chhore ko kyon mare". She has further stated that she did not see kulhari blows being actually dealt on the deceased Ganesh, as the accused was in the other side of the grass stack. The fields of Khema, Deva, Chagnia and Magia were nearest to her field. But none was present at the time of the occurrence.
(3.) PW/2 Dalla has stated that the accused picked up the kulhari lying outside the house and followed Ganesh. After some time, the groans of Ganesh were heard. Mst. Walki said, "hatiyare Maro Chora ne Ghar Ghar ka Kiyo kida papi. " He further stated that he did not actually see Ganesh snatching the kulhari of the accused and trying to give him (accused) kulhari blows. Pw/5 Magni Ram inquired about the whereabouts of Ganesh, and then finally lodged the first information report Ex. P/l on 19-12-1969. wherein he had stated that the cycle of Ganesh was found in a culvert in village Gajela. He has also mentioned that there was a dispute between the brothers regarding the agricultural land for over a year's time. Pw/7 Panna Lal has stated that the accused was arrested in his presence vide Ex. P/3 He has further stated that the accused has pointed out the dead body of his brother Ganesh in the Khokhriwala, a national highway in the Anney cut Canal. The dead body was lying below the culvert. ;